Thursday, 26 March 2015

Benefits for unemployed EU citizens: the CJEU may complicate David Cameron’s renegotiation strategy

Steve Peers

The issue of the free movement
(or ‘immigration’) of EU citizens between Member States has become highly
controversial politically, especially in the UK. In particular, their access to
benefits remains highly contentious. The CJEU has the chance to clarify some
key issues on this point, in the pending case of Alimanovic, in which anAdvocate-General
issued an opinion today.

Today’s opinion is not binding, so
we must wait to see if the CJEU is willing to follow it. But if it does, the
Court will complicate the Conservative party’s strategy to renegotiate the UK’s
EU membership. Even if the result of the upcoming UK general election means
that the Conservative party’s plans are moot, the judgment will still be
relevant to the Labour party’s less
far-reaching plans to restrict EU citizens’ access to benefits.

Background

The CJEU ruled in November 2014
in the well-known Dano judgment
(discussed here) that unemployed EU citizens who moved to another Member State
could not access social benefits there, if they were not looking for work. This
ruling did not apply to other categories of unemployed EU citizens: those who
moved to another Member State and were looking for work there, and those who
had worked there already and become unemployed. Today’s opinion concerns both
of these categories.

According to the EU citizens’ Directive,
unemployed EU citizens looking for work in another Member State cannot obtain
social assistance benefits from another Member State if they have not worked in
that State. However, the case law of the CJEU states that those citizens can
rely on the free movement of workers rules in the EU Treaty in order to claim benefits
related to the labour market.

As for those EU citizens who have
worked in that Member State and become unemployed, the Directive says that they
retain worker status (and therefore access to benefits, including social
assistance) if they have worked there more than one year. They also retain
worker status if they have worked there for less than that period, although in
that case they only keep that status for six months. However, again relying on
the Treaty free movement rules, the CJEU has ruled that worker status can be
retained in other cases too, for instance by women who have stopped work briefly
due to maternity (see discussion here).

The Conservative party position
is that EU citizens working in a Member State should have to wait four years to
get access to tax credits, social housing and housing benefits, as well as no
taxpayer support for job-seekers. As I discussed before, these are the
first and eighth of Cameron’s nine objectives in the planned renegotiation of
EU membership (in so far as it concerns ‘migration’ from the rest of the EU). The
Labour party position is that EU citizens should have to wait two years for
benefits.

The case concerns Swedish
citizens (a mother and her children) who had lived in Germany before, left for
a number of years, and then returned there. The mother and oldest child then worked
in Germany briefly, but became unemployed. Do they have access to benefits?

The Opinion

The Advocate-General first
clarifies that the benefits are social assistance, not labour-market related.
So job-seekers in general do not have access to them; only former workers do.
But as part of this analysis, he reaffirms the current rule that the Treaty
gives job-seekers access to labour-market related benefits.

Then he examines whether people
who become unemployed after short periods of work in a host Member State can be
considered former workers – and therefore retain access to social assistance
benefits – in cases besides those listed in the Directive. He argues that they
can, in part on the basis of the EU Treaties, and that any Member State which refuses
to extend such benefits to them automatically breaches EU law. Instead, a
Member State must consider the benefit request on a case-by-case basis,
assessing whether there is a sufficient link with the labour market of that
State.

Comments

If it is followed by the CJEU, the
Opinion makes both the Conservative and Labour plans to renegotiate UK
membership as regards EU citizens’ access to benefits harder to achieve. The
crucial point is the extent to which renegotiation concerns a Treaty amendment,
which is far harder to achieve (unanimous agreement of all Member States, and
national ratification) than an amendment to EU legislation, like the citizens’
Directive (qualified majority of Member States, proposal from Commission and
agreement of European Parliament).

First of all, the Opinion
reaffirms that the Treaty requires that all job-seekers get access to
labour-market related benefits. So only a Treaty amendment could overturn that
rule.

Secondly, the Opinion asserts
that the Treaty requires that former workers might have access to benefits, on
a case-by-case basis, if they have stopped work in circumstances other than
those listed in the Directive. This goes further than the status quo, since the
CJEU has only established this point as regards women interrupting work for
maternity. The workers concerned have only been employed in Germany for short
periods, well below the four-year waiting period that the Conservatives want,
or even the two-year period that Labour supports.

It remains to be seen whether the
Court will accept today’s opinion, or instead opt for a judgment that more
obviously reflects the political sensitivities surrounding unemployed EU
citizens’ access to benefits – as it plainly did in the Dano judgment.

1 comment:

Let me start by saying I am a British citizen born and bred, and IMHO Cameron's proposed renegotiation is rather pointless from the point of view of UK public finances. Taking each group as a whole immigrants from the rest of the EU are contributing far more than they are taking out, whereas the reverse is true for UK natives. Any abuse of the benefits system by EU immigrants is a drop in the ocean. Nonetheless Cameron has his ridiculous posturing on immigration which must somehow be appeased.

However could they not make the UK benefits system more contributory, thus meaning that in practice everyone who has paid enough in will receive benefits of whichever level. The rule would apply equally to all EU citizens (including UK) but would mean that these arguments about benefits abuse could be put to rest. My understanding is that in mainland EU the benefits systems are more contributory than ours, and are compatible with EU law. Would that work?